Improper Conduct with Other Judge

United States v. Martinez, 69 M.J. ____ (A. Ct. Crim. App. Oct. 7, 2010)
deals with improper conduct of the judge with other judge. The accused
in this case was initially arraigned by a military judge referred to as
"supervisory judge" the opinion. Following arraignment, the
accused agreed to plead guilty pursuant to an approved pretrial agreement.
Another military judge, referred to as "military judge" in the
opinion, presided over the accused's providence inquiry and sentencing.
During the providence inquiry, the supervisory judge observed from the
gallery, presumably in her capacity as a supervisory judge who provides
oversight of other members of the judiciary. In post-trial submission
(under R.C.M. 1105), the defense counsel alleged the supervisory judge
communicated directly with the trial counsel twice during on-the-record
portions of the guilty plea; after one communication, the trial counsel
asked for a recess and, once granted, the supervisory judge followed the
military judge into chambers. The ACCA ordered that the supervisory judge,
military judge, and trial counsel provide sworn affidavits regarding these
allegations.

The affidavits generally agreed: (1) the supervisory judge "passed
the trial counsel a note informing him that the military judge had failed
to elicit facts during the providence inquiry"; (2) the supervisory
judge "verbally" asked the trial counsel to request a recess
and the supervisory judge accompanied the military judge into chambers
during the recess that followed; (3) the supervisory judge and military
judge assert they did not discuss "substantive issues" in the
case, but rather the supervisory judge advised her colleague to address
all the terms in the pretrial agreement. Against this odd backdrop of
facts, the ACCA noted the case was "troublesome" but did not
warrant reversal.

The ACCA held without deciding that the military judge committed plain
error when he did not disqualify himself or obtain waiver, under the provisions
of R.C.M. 902(a), as a result of his knowledge of the supervisory judge's
contact with the trial counsel regarding a request for recess in tandem
with other facts of the case. Applying Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847 (1988), the ACCA found the error did not warrant relief.

The three Liljeberg factors are (1) risk of injustice to the parties in
the case, (2) risk that the denial of relief will result in injustice
in other cases, and (3) the risk of undermining public confidence in the
judicial process. Regarding the "risk of injustice," the court
noted the accused suffered no prejudice. The "supervisory judge"
performed a supervisory function only and her discussions with the military
judge were "limited to procedural matters." The court also noted
the accused received post-trial clemency from the convening authority
based on these unusual interactions.

Regarding the risk of injustice in other cases, the ACCA rejected the claim
that the supervisory judge's communications with trial counsel show
she was assisting the prosecution. In somewhat shaky analysis, the ACCA
concluded: "The evidence reflects that the supervisory judge's
interactions with the trial counsel during the proceedings were intended
to facilitate the Care inquiry after she was unsuccessful in gaining the
attention of the military judge. The supervisory judge's action advanced
the interests of appellant and the government insofar as they were intended
to ensure the requirements of the providence inquiry were satisfied."
Regarding the "risk of undermining the public's confidence, the
ACCA broadly decided that a "[r]eview of the entire record"
shows the military judge presided over the accused's court-martial
in a "fair and legal manner."

The other facts that the ACCA considered problematic include, but are not
limited to: the accused and defense counsel knew the supervisory judge
was a member of the U.S. Army Trial Judiciary (she had arraigned the accused);
the supervisory judge observed the entire trial and was taking notes in
the gallery sitting behind the trial counsel; the supervisory judge's
her irregular communication with the trial counsel; "the lack of
timely and full disclosure on the record by the appropriate parties of
the contacts between the supervisory judge and the trial counsel";
and the supervisory judge's access "albeit permissible"
to the military judge during recesses and deliberations. The ACCA noted
these facts contributed to the defense allegation that the supervisory
judge was assisting the prosecution and the military judge did not act
impartially. The ACCA quickly dismissed the third prong of Liljeberg (public
confidence) without any substantive analysis. There is a good argument
the public would question the fairness of a military court-martial after
observing a supervisory judge handing a note to the trial counsel and
then later telling the trial counsel to call for a recess so the two judges
could speak in private.

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